Online reviews can be crucial to business success and by extension, negative reviews may cause financial loss. If your business has been subject to a malicious negative review you may be able to take legal action if the review is defamatory, an injurious falsehood, or misleading or deceptive.
It is important to understand when and what action you can take against a person who posts a negative review about your products or services. It is equally important to keep in mind that if the negative review is a person’s genuine and truthful opinion, then there is highly unlikely that there is any legal action that you will be able to successfully take against them.
In the first instance, you can seek to mitigate the damage associated with a negative review by:
- contacting the person (if appropriate) and seeking to resolve the issue in exchange for them agreeing to remove the review (eg by providing them with a refund or offering a credit etc);
- commenting on the review addressing their concern if it is inappropriate to contact the person directly;
- reporting the review to the platform it is posted to requesting the removal of it if in your opinion the review is untrue or offensive; and/or
- sending the person a cease and desist letter requesting (amongst other things) that the review be removed.
However, before doing any of the above, the very first step you should take is (if possible) to try and ascertain whether the person has in fact been a customer of your business.
To successfully make a defamation claim you will need to establish that the review is both false and negatively impacts the reputation of your business or an employee. If the review defames an employee, then it is likely that you can bring a claim for defamation. However, if the review defames your business, you can only bring a claim if you have fewer than ten employees.
If your business has suffered financial loss resulting from a negative review, you may make a claim of injurious falsehood. This type of claim will require that you prove malice on the part of the reviewer, that the review (or a part of it) was clearly false, and that your business has suffered actual damage as a result of the review (eg customers cancelling orders and citing the review as the reason why etc).
Misleading and Deceptive Conduct
In a similar manner to injurious falsehood, if you establish that a rival has published a negative review about your business (or has had someone else do so on their behalf), then you may draw this to the attention of the ACCC. The ACCC will then investigate the allegation and if the rival is found to have engaged in misleading or deceptive conduct under the Australian Consumer Law then they may face prosecution.